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Banking Technology and Law – Open Banking


Open Banking or Open Financial System understood as “standardized sharing of data and services through the opening and integration of systems” is an initiative aimed at promoting competitiveness in the banking sector supported by technology.

Open Banking or Open Financial System understood as “standardized sharing of data and services through the opening and integration of systems” is an initiative aimed at promoting competitiveness in the banking sector supported by technology. It is proposed that customer data, at their discretion and in a secure manner, can be shared between various institutions so that financial services are offered more assertively based on the subsidies found in that information.

On May 29, 2019, the Central Bank of Brazil (BC) launched the “Agenda BC #” [i] in order to guide the institution’s work in the coming years in four complementary dimensions (inclusion, competitiveness, transparency and financial education), dealing with various issues, such as market access, reducing bureaucracy, improving communication and relationship tools, efficiency and citizens’ awareness.

Open Banking fits into the competitiveness axis, aimed at “preparing the National Financial System for an inclusive technological future”, alongside other disruptive innovations, such as blockchain, Artificial Intelligence, instant payments, in addition to strengthening cyber risk management.

Before that, on April 24, 2019, Communiqué No. 33,455 disclosed the fundamental requirements for the implementation of Open Banking in Brazil with regard to the scope, sharing of registration and transactional data and the need to publish regulatory acts. These, dated May 4, 2020, consist especially of Joint Resolution No. 1/2020 (implementation) and Circular No. 4,015 / 2020 (scope of data and services), which deal with aspects that are indispensable for understanding Open Banking, such as , for example:

Data and services: data on customer service channels, products and services, registration of customers and their representatives and transactions, according to the details of Article 5, Joint Resolution No. 1/2020 and Articles 2 to 5, Circular No. 4,015 / 2020; and payment transaction initiation services, related to an instruction ordered by the customer associated with a deposit or prepaid payment account (include account debit, transfer between accounts at the institution itself, TED, PIX, DOC and payment of slips) and credit transaction proposal forwarding services. It is possible to include other data and services through the convention to be signed between the participating institutions, provided that the requirements set out in the aforementioned normative act are observed.
Sharing: starts with the request for data and services (“interface call”) carried out by a participating institution (“receiving data institution”) to another (“data transmitting institution”), which performs the sharing of data from registration and transactions and services obeying the steps linked to obtaining the client’s prior consent; adoption of procedures and controls for authentication of the client and the receiving institution of data, compatible with the institution’s cybersecurity policy; and confirmation of sharing requested by the institution transmitting data to the client simultaneously with the authentication procedures, with a breakdown of the content of the sharing.
Prior consent: requirement for free, informed, prior and unequivocal manifestation of will made in electronic media regarding the client’s agreement regarding the sharing of data or services, which must be discriminated, for a specific purpose with a compatible, limited validity term, as a rule , to twelve months. In addition, consent must be requested using clear, objective and appropriate language, prohibiting obtaining it by means of a membership contract, a form with an option of acceptance previously filled out or presumed and guaranteeing the possibility of revocation at any time per customer request.

Convention: the participating institutions will enter into a convention, with the participation of the Central Bank, which must approve its content and then incorporate it, in whole or in part, into the jurisdiction of the Central Bank or the National Monetary Council. The central aspects of the convention refer to: technological standards and operational procedures; standardization of the data and services layout; channels for forwarding customer demands; procedures for resolving disputes between participating institutions; among others necessary to comply with normative provisions.

Governance: the structure responsible for the governance of the implementation process in the country of Open Banking to be established within the convention space between the participating institutions was detailed in Circulars No. 4,032 / 2020 and 4,037 / 2020. This structure is divided into three levels, composed of Deliberative Council, Secretariat and Technical Groups. The first is formed from the election of associations or groups of associations representing financial institutions, with terms of 12 months, according to the result disclosed in Communiqué 35.922 / 2020, which will indicate the representatives for the Deliberative Council.

Deliberative Council: composed of up to seven directors with the right to vote in the deliberative processes, among its attributions being the definition of the internal schedule of activities in harmony with the deadlines provided for in Joint Resolution No. 1/2020. This includes the approval of proposals for technological standards, operational procedures and other aspects necessary for the implementation of Open Banking in the form of a convention that will be submitted to the BC.

Implementation timetable: divided into four stages between the dates of 11/30/2020 and 10/25/2021, according to article 55, of Joint Resolution nº 1/2020.

The expected results with Open Banking relate to increasing efficiency in the credit and payment market, by stimulating an innovative, competitive and inclusive business environment, ensuring the sustainability and security of the National Financial System and the protection of customers .

By: Wilson Sales Belchior


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